The Complexities of Constitution Making

Sujit Choudhry and Tom Ginsburg examine the many issues involved in the making of constitutions.The making of constitutions is both ubiquitous and poorly understood. It is ubiquitous because constitutions are a central feature of the modern nation-state, but do not generally last very long. It is poorly understood in part because of the sheer diversity of environments in which constitutions are produced. Consider a few examples from the recent wave of constitution-making in the Arab spring. Six countries have engaged in some form of constitutional revision, but in only one, Tunisia, is the outcome anything like the consolidation of a new political order. Other cases have been more successful. In some countries like South Africa and Spain, constitution-making provided a discrete moment of national reconstruction. We also observe calls for new constitutions in stable democracies like Chile, where some yearn for a new document untainted by the shadow of the past.

Constitutions play many different functions and roles: political bargains, social contracts, sources of benefits for interest-groups, devices for the protection of fundamental rights, embodiments of core values, and signals to external actors. Yet regardless of the way in which a constitution is conceptualized, there is now an almost standard set of decisions that must be made, with choices about form of government, rights, judicial power and other features all embodied in a single text. Constitution-making is the process of producing these texts; constitution-building is the temporally extended process of creating functioning institutions and processes of governance. Our new volume, Constitution-Making, collects some of the most important academic contributions on constitution-making.

Constitution-making in the modern era involves a double compact. Constitutions are social contracts among the people or peoples of a state on the way in which they wish to organize their common political life. But they are also pacts among politically powerful actors on how to pursue their own narrow interests within the framework of a constitutional order. For constitutions to be stable, they have to be rooted in both kinds of agreements simultaneously – among the people as a whole, and among the politically powerful among them. If one element is present, but the other is not, the constitutional order may not take.

If we let politicians draft the constitution that governs their powers,
they would engage in self-dealing

In practical terms, each understanding of what a constitution is supposed to do yields a different vision of how a constitution should be made. The view that the constitution is a social compact suggests that constitution building must be a public, democratic, transparent process. The key institution is an elected, special purpose constituent assembly (CA), whose only function is to draft the constitution. This body should be free from the control of political parties. The body should be diverse, and include a broad cross-section of civil society actors, members of excluded ethnic or religious groups, women, etc. to reflect the country as a whole. The reason is that the CA is the voice of the people, who create its constitution that in turn binds politicians who hold power under the constitution. On the social contract view, if we let politicians draft the constitution that governs their powers, they would engage in self-dealing. The entire constitutional process should occur in the open and engage the people, who would set the agenda, make submissions to thematic committees, provide feedback on draft proposals and the final text, and ratify the agreement in a referendum.

Viewing the constitution as an elite pact yields a very different picture of the constitutional process. Rather than separating constitutional and legislative functions in a transitional context, both functions would be lodged in the same body. Political parties and elected politicians would simultaneously engage in ordinary politics and constitutional politics. A constitution would arise from the agreement of political parties, and may not necessarily be subject to public ratification in a referendum. The procedures for public input would be similar to those that apply to the legislative process generally, as opposed to a mass moment of public deliberation. Important parts of the process would occur behind closed doors, outside formal fora – in all-party negotiations, in which public participation would be limited.

Too much participation can lead to overload of constitution-making processes

In the real world, elements of both the constitution as social compact and elite pact are often found in various hybrids and combinations. Still, the ideal types are helpful in examining different constitution-making situations, as they help us to analyze the particular dynamics at work from a broader perspective. For example, the American experience involved an initial phase of bargaining, followed by a period of public ratification in which the people gave their assent to the elite-produced document. If a goal of constitutions is to channel political conflict into formal institutions, the right balance between elite and mass involvement must be struck. Too much participation can lead to overload of constitution-making processes. On the other hand, too little participation can mean that the resulting document has little social basis and provokes backlash.

There are many other issues related to constitution-making that are addressed in our project. Besides legislative-centered processes and those led by a specially elected Constituent Assembly, there are other major types of constitution-making bodies: constitutional conventions, which bring together major players to produce a document, and roundtables, in which major actors come together to negotiate principles. Other actors may also be involved: courts may police the constitution-making process, as occurred in South Africa; civil society may be involved; and the public might play a role both in generating ideas, as well as approving the constitution in a referendum, as in the Kenyan case.

Another useful distinction is the question of whether constitution-making involves a legal break with the past. Sometimes, constitution-making is done in situations of legal continuity, in which the former constitution provides for its own revision. Other times it involves a kind of legal rupture.

One of the key questions with regard to process is sequencing. In the ill-fated Egyptian constitutional transition, the decision was taken early on to elect a legislature, which in turn would select a constituent assembly to write the final document. This process led to the long saga of 2012, in which the Muslim Brotherhood gradually monopolized constitution-making, and courts repeatedly ruled the elections unconstitutional. The result was the short-lived Constitution of 2012, a relatively under-inclusive document that ratified a political victory but did not bring opponents into the fold. This has led some to argue that elections should follow constitution-making rather than precede it. But it is hard to have a general answer to this question, as Tunisia also had an elected constituent assembly that produced a constitution in 2014, albeit through a difficult and highly contested process that almost broke down. The Egyptian story illustrates the dangers of a botched process: the country is arguably more divided than ever, and again under a military dictatorship. Another issue of process concerns whether constitution-making should occur all at once or be a more extended, multistage process. When a grand bargain is unobtainable, an incrementalist strategy may be more desirable as parties learn to trust each other and work together over time.

Constitution-making is a Rubicon, through which societies pass on their way from a sometimes unpleasant past toward a hopefully better future. The way in which constitutions are made can affect this future, either by bringing people together or by pushing them apart, exacerbating cleavages or making new ones. To successfully navigate the transition requires, it seems, the collaboration of elites as well as ordinary citizens, and the facilitative but not overbearing support of the international actors.

Sujit Choudhry, is I. Michael Heyman Professor of Law at the University of California, Berkeley, School of Law, US

Tom Ginsburg is Leo Spitz Professor of International Law, University of Chicago Law School, US